Friday, September 13, 2013

Supreme Court News

Attorneys for the three falsely accused players have filed
their reply to the City of Durham’s brief, the final stage before the Supreme
Court will decide whether to hear the appeal.

A brief reminder on how we got here: a three-judge panel of the 4th Circuit essentially sided with Durham, dismissing all but one state
claim on the grounds that the police were honest with Mike Nifong (acting, at
the time, in his improper capacity as supervisor of the pre-indictment police
investigation) about the evidentiary weaknesses in Crystal Mangum’s wild
allegations; and a grand jury (acting, in the case of Sgt. Gottlieb’stestimony, on an erroneous recapitulation of the facts) returned indictments,
breaking the chain between the police misconduct and the arrests.

The falsely accused players appealed
to the Supreme Court, citing three lines of argument. First, their brief noted
that several other circuits had held that civil liability ensued for pre-indictment
police misconduct, even when a prosecutor secures an indictment; and that the
Supreme Court, in oral arguments for a case ultimately settled on other grounds
(Pottawamie County), appeared to
agree. Second, the petition suggested that the 4th Circuit had
strengthened a circuit split on the question of whether police officers
fabricating evidence during an investigation violates the Constitution. Finally,
the players’ filing noted that even on its own terms (that an indictment wipes
clear the city’s federal liability for everything that occurs before) the 4th
Circuit’s ruling made no sense, given that the improper conduct by city
employees (the harassment of Elmostafa, Sgt. Gottlieb’s magical “notes”) came after indictments occurred.

Durham countered by reiterating its traditional line of
argument, which was previously summarized by Judge Beaty: that “no provision of the Constitution has been violated,
and that no redressable claim can be stated, when government officials
intentionally fabricate evidence to frame innocent citizens, even if the
evidence is used to indict and arrest those citizens without probable cause.”

The players’ reply opens with this wonderful line: “In a brief in opposition that is
long on invective—and, for that matter, just plain long—[Durham] respondents
seek to hold petitioners to an impossible burden.” The Durham argument amounts
to a suggestion that because the Supreme Court has never before considered a
case precisely like the lacrosse case (was there such a case?), the Court
should allow the 4th Circuit decision to stand. But the Supreme
Court often hears cases that involve previously-unseen facts; the issue, as the
reply brief correctly notes, is whether this case illustrates a split between
the federal circuits on an important issue. And Durham never really argued
otherwise.

The reply
brief makes three central points:

First, the
brief dismisses Durham’s efforts to distinguish its conduct from cases in other
circuits where governmental agents were held liable for federal violations. The
city had claimed that all of these cases differed from the lacrosse case
because in each of them, police had not fully shared information with the
prosecutor, but had instead misled or withheld evidence from the prosecutor,
which the Durham Police did not do. But the players’ reply brief observes that
the circuits whose opinions are in question (the 2nd and 6th)
did not, in fact, make such a hard and fast distinction, and certainly did not
suggest that facts like the lacrosse case—in which police conspired with a
prosecutor acting as their de facto supervisor
to produce evidence to frame innocent people for a crime that never occurred—should
be shielded from constitutional claims. Indeed, the brief notes that one case
on which Durham relied (Wray v. City of
New York) actually appears to back the players’ position, not Durham’s, on
this point.

Second, the
brief reasons that the arguments in Durham’s filing “do not pass the smell test”
regarding the city’s attempts to differentiate its behavior from earlier cases
in which federal courts had found that “the fabrication of evidence at the
investigation stage, standing alone, gives rise to a constitutional violation.”
For instance, the brief observes, the City had tried to distinguish its
behavior from a 1st Circuit case, Limone v. Condon, on grounds that the plaintiff in Limone was falsely imprisoned using
fabricated evidence, while the lacrosse players were only falsely arrested,
detained, and would have gone to trial but for a 9-8 decision by the State Bar
to bring charges against Nifong. Yet the case that Durham believes helps in
cause in fact says that “if any concept is fundamental to our American system
of justice, it is that those charged with
upholding the law are prohibited from deliberately fabricating evidence and framing
individuals for crimes they
did not commit.”
Durham thinks that Limone helpsits cause?

Finally, the
brief cleverly uses its rebuttal of Durham on this point to remind the Court
that the behavior of the lacrosse case was, in a way, more egregious than the cases cited by either side. It’s true, the
brief notes, that most of the cases involving constitutional claims based on
police misconduct involved the police behaving improperly toward the
prosecutor. But that’s because, in each of these cases, the prosecutor wasn’t himself
involved in a conspiracy with the police to fabricate sufficient evidence to
secure indictments. It’s not as if any circuit other than the 4th
Circuit has held that this sort of record should be shielded from
constitutional challenge as long as the prosecutor managed to fool a grand jury
into returning an indictment. For instance, the brief points to a 5th
Circuit case, Hand v. Gary, to
explain that “a prosecutor’s intervening action ‘remain(s) tainted by the
malicious actions of the government officials’ either if the officials ‘join in
malicious prosecution by prosecutors’ or if the officials’ malice ‘results in
an improperly motivated prosecution without probable cause.’”

The Court
does not accept many cert grants. But if the justices decline to hear this
case, and thereby allow the 4th Circuit ruling to stand, they’ll be
saying that a victim of a police-prosecutor conspiracy to create evidence to
indict the victim without merit has no federal constitutional claim in six
states. That would be a terrifying precedent.

20 comments:

Anonymous
said...

So...you've got a Durham judicial system that gets a free pass to falsly accuse and arrest and detain anyone basically and a Durham police chief who thinks that Durham public defenders deserve to be shot, even when they are a innocent bystander in Durham.

This is NOT just about these Duke students, it effects everyone - just like it has from the beginning. A LOT of people, too many to count, have been hurt tremendously by the party they decided to have that hasn't ended yet ... does it ever?

When you put all of what this current case could imply for all NC citizens - AND all USA citizens as far as case law (can it effect the entire USA?) AND you read about General Petraeus telling the attendees at the 12th anniversary of 9/11 on 9/11/2013 as reported in the Herald Sun that:

"It's wonderful to be in the Blue Devil NATION, even if it's in the TarHeel State"

don't you really and truly begin to wonder what is really going on?

If this case is lost, what does it mean for all NC citizens?

What does it mean for ALL USA citizens?

What does the reference to Blue Devil Nation imply and truly mean?

Does the General also hold a dislike for other states, or only the TarHeel State?

If they lose, I personally will never wonder again if that whole case was not set up from the very beginning to achieve the nefarious plans of those in coherts with the blue devil nation that stand against the constitutional rights of all USA citizens and the world.

I have seen it like that from the beginning, but have been patient in my final analysis. At this point, there needs to be major public awareness of what is happening - so that the people who will be effected by this case can also have a say in matters, wouldn't you think - if it effects so many people?

How does that work?How can so many have their constitutional rights dissolved in one fail swoop without having a say in the matter?

So ... 'they' make the first part of the lacrosse case into such a public farce to obliterate any hope of a fair trial in USA, then 'they' support the lacrosse players and the innocence commission in their heroic attempts to straighten out Durham, all the while telling everyone to stay out of the news if anything goes against duke or the durham judicial system - and the news follows along and leads the way - like in the Cline/Hudson case, and employ others through manipulation or whatever to continue to build hatred for everything that Ms. Mangum represents in the form of hatred against blacks, women, mothers, sisters, female military members, people who are raped and complain about it or ask for help,

and hatred against the judicial system, the law enforcement system, whites, men,

as well as hatred against the rich elite, duke, duke students, duke administration, duke health care, health care in general,

and to top it all: north carolina, nc citizens,

... did i mention duke, duke students, duke administrations, and duke health system ... did i mention the entire state of nc and its citizens ...

i ask you ... why? To further divide and incite hatred in the american public in order to find reason to further degrade constitutional rights for all americans ... all done with the cooperation of the Blue Devil Nation and with the terrorized corruption and brainwashed groomed support that is rampant in NC (because of duke to large degree).

???

that's what happened and continues to happen. so ... what to do? Sit by quietly and watch 'them' do this to 'us' once again - and this time in such a malicious and devious manner (that is duke). My apologies if that upsets anyone other than on the side of the 'we the people' stand, but - hey there are a hell of a lot more of 'we the people' that are getting hurt by all this than 'them' ... sorry ...

With the leaders of the Blue Devil Nation so hatred driven and driving, you then have an environment in which all NC citizens and all Duke students and all visitors to NC and Duke and Durham, and all in Durham and who conduct business in any way or who live or play in Durham at the mercy of those directly lead by the leaders of the Blue Devil Nation in their hate driven quest if they must trust Duke in any way - even in health services and judicial interfaces that have direct impact on life or death for all - doesn't matter who - ALL ARE EFFECTED by this, in NC especially, but anywhere that is touched by this hatred driven and driving 'service' to the people (and their 'land' and resources and constitutional rights).

if you understand the lies and how and why they exist ... and truly see the big picture ...

it's really hard to watch ...and not say something ...especially if you understand that it doesn't have to be this way ...it just is ...because 'they' and all who follow their lead make it this way,not because 'it' has to be this way.

How can so many at Duke lead the nation into such illness and loss of constitutional rights, and conduct business in such a way that seems to rely upon deception, chaos, and fear based societal control in such blatant ways?

It is amazing to watch that Duke would have a gang of 88 for their own 'nation' but not one for the entire USA nation since they deem to lead the way for so many.

Is everyone at Duke under some form of mind control where they cannot think or act for themselves if the rights and health of the USA public are at risk beyond the 'master plan' or whatever is guiding the way these days?

What do they benefit if their rights are taken away if they remain silent and allow the destruction of this nation's judicial system that has traditionally been based upon the USA constitution and was designed to protect it's citizens from the harm that allowing these loss of rights will entail.

Are they not USA citizens as well with the same possibility for ill effect if constitutional rights are dissolved? This part I do not understand, that you don't see more protest at Duke about what is truly happening.

It certainly looks like it. He misuses language in the same way. His misspellings (which for all I know are purposeful) seem the same. His syntax -- possibly an attempt to show us all how "earthy" he is -- seems the same.

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